Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.

Wednesday, June 01, 2016

A small but significant victory for landowners at the Supreme Court

This morning, the Supreme Court issued a single opinion in an argued
case that should be of particular interest to private landowners and
administrative law aficionados: U.S. Army Corps of Engineers v. Hawkes. In Hawkes,
a unanimous court concluded that private landowners may challenge a
federal agency’s conclusion that a given piece of land is subject to
regulation under the Clean Water Act (CWA) once such a “jurisdictional
determination” has been made. With this ruling, the court handed private
landowners a small but significant victory.

Here’s some
background. Under the CWA, it is illegal to “discharge” a “pollutant”
into the “waters of the United States” without a federal permit. These
terms are defined quite broadly, so that the deposit of soil, dirt or
clean fill may constitute the “discharge” of a “pollutant.” This means
that a private landowner who seeks to build on his or her property,
perhaps by building a home, must obtain a federal permit if (and this is
the key part) that land is considered part of the “waters of the United
States.” How would a piece of land be considered “waters”? Because the
federal government has defined the “waters of the United States” to
include wetlands. If such lands are sufficiently connected to other
waters, such as rivers and streams, they are subject to the CWA’s
permitting requirements.

For an individual landowner, it is not
always clear whether a given piece of land is subject to the CWA
regulation. For this reason, landowners may seek a jurisdictional
determination from the federal government (specifically, the U.S. Army
Corps of Engineers), in order to find out whether federal regulators
believe a permit is required. If the Army Corps says “no,” then the
landowner is in the clear (at least under the CWA). If the Corps says
“yes,” then the landowner must obtain a permit before, say, placing fill
on the property.

Under
today’s decision, a jurisdictional determination is a final agency
action that is subject to judicial review. This is because once the Army
Corps determines that a given parcel is subject to regulation under the
CWA, it has reached a final conclusion about its jurisdiction, and this
decision has clear consequences. If the Corps concludes it has no
jurisdiction, the landowner can be sure the he or she will not risk
federal prosecution for developing the property without a permit. If the
Corps concludes it does have jurisdiction, then the landowner knows
that developing the property without a permit is, in the view of the
agency, illegal. Further, the court concluded, once an affirmative
jurisdictional determination has been made, a landowner has no
meaningful alternative to judicial review to contest the agency’s
decision.

What this means, in practical terms, is that landowners
have greater ability to determine whether their property is subject to
federal regulation and to challenge potentially overbroad assertions of
jurisdiction...

Chief Justice John Roberts wrote the opinion for the court. Three
other justices wrote concurrences: Justice Anthony Kennedy (joined by
Justices Samuel Alito and Clarence Thomas), Justice Ruth Bader Ginsburg
and Justice Elena Kagan.

Kennedy’s concurrence stressed that even with the court’s decision (and its prior decision in Sackett, which I discussed here and here),
the application of the CWA to private property “continues to raise
troubling questions regarding the Government’s power to cast doubt on
the full use and enjoyment of private property throughout the nation.”